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Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
Lesson 5: Establishing the Executive Branch
Article II, Section 1, Executive Power Established
Article II establishes the Executive Branch. The Founding Fathers were anxious regarding the creation of the office of the executive because they feared that a leader with too much power had the potential of being tyrannical. Many of the founders even argued that there should not be one executive, but many, so that they may serve as checks against each other. Their concerns were well placed, if one considers that their frame of reference was the authoritarian king of the British Empire.
Despite their fears, they knew that the authorities of the president under the Articles of Confederation were too few, leaving the office of the president much too weak to adequately serve the union. The founders were looking for a strong leader that also recognized the limitations on the authorities of the federal government as granted by the States through the articles of the Constitution. The best model for the presidency was a simple choice. Article II was written, some believe, with George Washington in mind.
Article II, Section 1, Clause 1 states that the powers of the executive are “vested.” This word, as we learned when we went over Article I, Section 1, carries a meaning similar to that of the word “granted.” Vested means “legally transferred.” The President’s authorities are powers given to him through a legal transfer of authorities. The powers vested to the Executive Branch were granted by the States.
The founders understood that whenever there is a “leader,” there is a struggle for power. America has been no different. The office of the president has increased its powers over the years, mostly through unconstitutional means. The Founding Fathers sought to limit the powers to the executive. Among those limitations of powers is also a term-limit. The executive is limited to a term of four years, as is the Vice President.
Election
The election of the President and Vice President is not accomplished by direct election. Appointed electors vote for the President and Vice President. The electors were originally appointed by the States during the early elections of American History. The formula for determining the number of electors is determined by taking the number of Representatives and Senators the State is entitled in Congress, and combining those two numbers. This method of indirect election is also known as The Electoral College, which was designed in this manner specifically to protect the United States against the excesses of democracy.
After the 2000 election, where the winner of the popular vote was denied the presidency because he did not win the fight for electors, questions regarding the Electoral College arose. It was only the fourth time in history such an event occurred. To find precedents resembling the 2000 election one has to go back to the 19th century, to the elections of 1888, 1876, and 1824. Those were the only elections in American history prior to the election in 2000 where a winner in the popular vote was denied the presidency through the Electoral College system.
Recently, there has been a number of officials promising to introduce legislation to abolish the Electoral College, claiming that it no longer serves a good purpose in modern politics. The reasoning of these folks that oppose the Electoral College suggests that the United States should simply allow the popular vote of the American people be followed every four years when we elect our president.
A number of Americans have voiced their agreement with this opinion, arguing that the individual running for President receiving the most votes should win. An indirect election such as the Electoral College, argue these folks, is simply unfair and undemocratic. In other words, they believe the American political system should operate as a direct democracy.
The Founding Fathers purposely did not make this country a democracy. The United States is a Republic, equipped with checks and balances at all levels of government, including the voting process. Democracies were proven, according to the founders, to be failures.
John Adams was quoted to say, “Democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.”
Thomas Jefferson said, “The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.”
The founders are not the only historical figures to recognize that a democracy opposes liberty.
Karl Marx once said, “Democracy is the road to socialism.”
Karl Marx, the father of communism, understood that the implementation of a democracy is a necessary step in the process of destroying our Constitutional Republic. Once the people are fooled to believe that they can receive gifts from the treasury rather than achieve for their livelihood, they will continually vote in the people who ensure the entitlements continue to flow. Eventually, this mindset becomes the majority. This group then changes over time from an involved and informed electorate to a populace that lacks the understanding of the principles of liberty and can easily be manipulated into believing that sacrificing individual liberty in exchange for social justice and security is a price that we must be willing to pay. A group that is dependent upon the government in such a manner, then, is prime to vote into power a tyranny. Eliminating the Electoral College would make it easier for these members of our society to vote into office those that promise more entitlements.
Once the majority of the voters in a Democracy become the recipients of benefits from the Federal Government, the government achieves unchecked power, and may then violate the property rights of the productive members of society in order to provide benefits to the non-productive members of society. This is best characterized in the "tax the rich," or “redistribution of wealth,” scheme we are now seeing emerge as the rally cry by the current administration. The founders called this method a “scheme of leveling.”
The founders were aware of this danger, which is why they established our system of government, and the electoral college, in the manner they did. A true democracy becomes “mob rule,” and the principles of liberty become a target for elimination.
“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” -- Thomas Jefferson
In order to preserve our Constitutional Republic it was imperative for the vote of the people to be indirect, except when it came to voting for their representatives in the House of Representatives. The Founding Fathers divided power as much as possible, including the power of the vote.
Originally, the State Legislatures appointed the electors that cast their votes in the Presidential Election. That changed in 1824 when all but six states decided the electors should to vote in line with the popular vote.
U.S. Senators were initially appointed by the State Legislatures, which ensured the voice of the States was present in the federal government. That changed in 1913 with the 17th Amendment, which transferred the vote for the U.S. Senators to the popular vote. The 17th Amendment took away from the States their representation in the federal government.
The Founding Fathers divided the voting power as they did partially because if the power to vote for president, the House, and the Senate all fell to the people, and if the people were fooled by some political ideology that wished to destroy the republic by fundamentally changing the American System, a tyranny could be easily voted into control of all parts of the government without any checks present whatsoever. When the majority of voters are uninformed in such a manner, and are given the full voting power, tyranny is inevitable.
Winston Churchill understood the dangers of trusting an uninformed electorate with the capacity to govern. He was quoted as saying, “The best argument against democracy is a five minute conversation with the average voter.”
The elimination of the Electoral College would take away the voice of the smaller states, give the election of the President to the seven largest metropolitan centers in the United States, and lead America even closer to becoming a democracy.
Democracy is a transitional governmental system that ultimately leads to tyranny. This was true in the days of the French Revolution no less than it is true today.
While democracy lasts it becomes more bloody than either aristocracy or monarchy…Democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. -- John Adams
Democracy is two wolves and a sheep voting on what to have for dinner” -- James Bovard
Our country is not a democracy. Our nation was founded as a constitutionally limited republic. The indirect election of the President through the Electoral College reflects that truth, and the Electoral College is one of the last vestiges of the system of checks and balances as they apply to the voters.
Article II, Section 1, Clause 4 indicates that the Congress may determine the time and day the electors are chosen, and give their votes. The day they vote for President and Vice President, according to this clause, will be the same day nationally. The rules for the popular election, if you will remember from Article I, are to be established by the State legislatures.
Eligibility
Article II, Section 1, Clause 5 states that the eligibility for President includes the requirement that the individual be a natural born Citizen.
Notice that the Constitution says a natural born citizen, “or” a citizen of the United States at the time of the adoption of the Constitution. This was to ensure that anyone alive at the time of the adoption of the Constitution who was a citizen was eligible, and anyone born after the adoption of the Constitution had to be a natural born citizen to be eligible. The word “or” gives us a clue that there is a difference between “natural born citizen,” and “citizen.”
Some people will use the Fourteenth Amendment as an argument regarding the definition of natural born citizen. The Fourteenth Amendment says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Fourteenth Amendment, in this clause, as it states, only addresses “citizenship” - not the concept of being a natural born citizen. Therefore, it does not apply when discussing the concept of natural born citizenship. The clause was written as it was to protect the citizenship of the children of the emancipated slaves. The word “jurisdiction” was placed in that clause to mean “full allegiance.” There was a fear during that time, as there had been during the founding of this nation, of divided allegiance, or divided loyalties.
Natural Born Citizen is not defined in the Constitution primarily because it was common knowledge. People understood what the term “Natural Born Citizen” meant.
Today we have a number of terms that are understood without needing to be defined. One of those terms is “fast food.” Without needing a definition provided, most people know what “fast food” is. That does not mean the term will be readily understood by some historian of the future. He may ask himself, when he comes across that term in our literature, “Why is it their food was fast? Did it run quickly away from them?” To understand what “fast food” meant to us, he may have to refer to a number of writings before he finally comes across the definition.
One of the sources the Founding Fathers used when it came to establishing the definition of “Natural Born Citizen” was Vatell’s “Law of Nations.”
Vatell’s Law of Nations is mentioned once in the Constitution in Article I, Section 8, Clause 10, and it is capitalized - which suggests the mention of the Law of Nations to be a proper noun, thus supporting the argument that it is a direct reference to Vatell’s writings.
Recently, it was discovered that George Washington failed to return a couple library books to the New York City Public Library. One of those books was Vatell’s Law of Nations. Washington checked the book out in 1789, shortly after the Constitutional Convention, probably because of the heavy influence the definitions in Vatell’s Law of Nations played on the writing of the U.S. Constitution.
Benjamin Franklin owned three copies of the Law of Nations - two for the convention, and one for his personal use. He received those copies from the editor, Dumas, in 1775.
Vatell’s Law of Nations Section 212 indicates that to be a Natural Born Citizen both parents must be citizens at the time of the birth of the child. As with the Fourteenth Amendment, there was a fear of divided allegiance.
Vetell’s Law of Nations required also that the child be born on American Soil, but if you read further down the section addresses other possibilities. The Immigration and Naturalization Act of 1790 confirmed the definition not requiring the child to be born on American soil, but still requiring that both parents be American citizens at the time of the child’s birth. The section in the Naturalization Act of 1790 I am referring to specifically reads: “And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.”
Note that the fifth word, citizens, is in the plural, which means it requires both parents to be citizens at the time of the birth of the child in order for the child to be a “Natural Born Citizen.”
Article II also establishes that in order to be eligible for the presidency the candidate must be at least the age of 35. This requirement, reasoned the founders, would ensure that the immaturities of youth had passed away. Along with a relatively mature age, the Constitution indicates that the president must also have been a resident of the United States for the last fourteen years. This, once again, was a guard against divided loyalties.
The Vice President must also meet all eligibility requirements. In the 18th century the Vice President was the second place winner in the election, and therefore had to be eligible because he was originally running for President. Now, the Vice President is elected as a part of the presidential ticket. However, to ensure it was clear that the Vice President also had to be eligible for the presidency, especially since he was next in line for the presidency should the Office of President be vacated, the 12th Amendment ends with a sentence that demands the Vice President is eligible for the presidency.
In Case of Death
Article II, Section 1, Clause 6 was changed by the Twelfth Amendment. This clause established the rules in case of the death of the President while in office. The clause gave the Office of the President to the Vice President in the case of death. The ambiguity of the clause, however, created confusion. In the case of President Benjamin Harrison who died after only 30 days in office, it created a constitutional crisis. The officials of that time did not know what to do. When old Tippecanoe died, he was succeeded by his Vice-President John Tyler, but since no President had died in office before, no one was quite sure how Presidential succession worked. The Constitution stipulated that the Vice-President should become the new President, but it was not clear if the Vice-President should be considered a "real" President, or if he only “acted” as President. The Tyler administration made it clear that Vice-Presidents who became President after the death of the elected President should be treated as legitimate Presidents.
The Twelfth Amendment later addressed the problem with more specified rules. Later, succession was resolved once and for all with the ratification of the 25th Amendment in 1967.
Compensation
Article II, Section 1, Clause 7 allows for the President to be compensated for his service as President of the United States. This salary is not to be increased or diminished while the President serves. The President, according to this clause, is also not allowed to receive any other governmental salary from the federal government during his term as President. In George Washington’s First Inaugural Address, he announced that he would accept no salary as President.
Oath or Affirmation
In the final Clause of Article II, Section 1, the Oath or Affirmation for the Office of President was established.
The reason for the clause indicating Oath “or” Affirmation was because an Oath is to God, and an Affirmation is not. The founders understood that not all Americans believe in God, therefore an option needed to be available for non-believers. Affirmation was also included as an option because there were some Christians that believed swearing to God to be a sin. Offering the opportunity to “affirm” gave these Christians an opportunity to take the affirmation of office without compromising their religious beliefs.
Note that the President is expected, according to the text of the oath or affirmation, to preserve, protect, and defend the Constitution of the United States.
You will also note that placing one’s hand on a Bible is not in this Article. The placement of a hand on a Bible while reciting the Oath or Affirmation was something that George Washington chose to do, and it has been a tradition ever since.
Terms:
Democracy: A form of government in which all citizens have an equal say in the decisions that affect their lives. Such a system includes equal participation in the proposal, development and passage of legislation into law.
Electoral College: A body of electors chosen by the voters in each state to elect the President and Vice President of the U.S.
Executive Branch: The branch of government responsible for executing, or carrying out, the laws. An executive in government can be a president, or a governor.
Leveling: Moving money from one group of people to another by raising and lower taxes accordingly in an effort to achieve economic equity in society.
Republic: Form of government that uses the rule of law through a government system led by representatives and officials voted in by a democratic process. The United States enjoys a Constitutional Republic.
Questions for Discussion:
1. Why didn’t the Founding Fathers make the President a king?
2. How does the Electoral College ensure fairness for the minority States?
3. What is the difference between a democracy and a republic?
4. Why did the Founding Fathers divide the voting power?
5. How is “citizen,” and “natural born citizen,” different?
6. Why were the Founding Fathers concerned about divided loyalty?
7. How does the eligibility requirements ensure that the President, especially as Commander in Chief, holds full allegiance for the United States?
8. How was the way the Vice President was chosen in the 18th century different from how the Vice President is chosen today?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Copyright Douglas V. Gibbs 2015
Lesson 6: Powers of the Executive Branch
Article II, Section 2
Commander in Chief
Section 2 of Article II establishes the President as the Commander in Chief of the Army and Navy, and of the Militia of the several States, when called into the actual Service of the United States.
This allows for the President to wage war, if necessary, without Congressional approval. However, if Congress does not agree with the President’s actions, they can pull the funding, which would force a discontinuation of the use of the military for whatever operations the President chose them to operate. In the Articles of Confederation, the powers to wage war, and to declare war, were listed as separate authorities, although in the Articles of Confederation both powers were granted to the Congress.
There were extensive debates over war powers. In fact, when the founders were debating over war powers in regards to Article I during their assembly on August 17, 1787, they considered giving to Congress the power to “make war.” A number of reasons brought up during that debate convinced the delegates to give Congress the power to declare war, instead. This decision left the power to make war with the President, as Commander in Chief.
When the Framers of the Constitution were creating the executive branch, the President they had in mind was George Washington. He was, in their eyes, the perfect President. The executive branch was fashioned around Washington’s personality, and abilities. The expectations were that the presidents to follow Washington would be similar to Mr. Washington in their level of sacred honor, humility, and ability to properly apply the war powers as necessary, while refraining from becoming involved in foreign entanglements that did not directly affect the United States of America.
Among Washington’s strengths was that he was a great general. It became apparent that the President would need to be a strong military leader. However, the consideration that an executive may take that power and abuse it was in play. Therefore, a number of checks and balances against the power of the executive branch were put into place.
Part of the reason the power to make war was given to the President, and not Congress, has much to do with the time period. One must consider that when the members of Congress were at home in their districts, it could be as far as the southernmost State of Georgia. Considering the lack of technology, members of Congress could not just get on a plane, or take a drive, to get to Washington, D.C., quickly. Even the time it may take to get the messages out to the members of Congress could take longer than the time needed to begin necessary war maneuvers.
When it came to war powers, the need was for the Commander in Chief to be quick, decisive, and take care of business as needed. However, if we have a President acting in a tyrannical manner, launching military operations when it is not necessary, aside from the ability to electorally vote the President out of office, the Congress has two ways to check his behavior.
First, Congress can pull funding. If there is no money, the troops must be brought home. Second, the Congress has the power to impeach the President if he is becoming tyrannical, or is doing things that he shouldn’t (maladministration).
One concern that has arisen in today’s political environment, largely as a result of the change in the dynamics of our political system by the 17th Amendment in 1913 that changed the Senate from being the voice of the States, to an assembly directly voted into office by public vote, is if both Houses of Congress are in collusion with the President. A White House administration with both Houses of Congress working with the President could be a recipe for disaster in regards to the rule of law, creating an opportunity for those three parts of the federal government to collude against the people, which would inevitably lead to the rise of an unchecked oligarchy.
In the cases of the wars in Iraq, Afghanistan, or Libya, the President had every right to launch those operations. That is not to say the decisions were correct, or in the best interest of our country, but that the President had the constitutional authority to wage war in those theaters without his actions being accompanied by a congressional declaration of war.
When it came to foreign entanglements, the Founders preferred America to stay out of such conflicts unless American interests were directly influenced. George Washington in his farewell address is actually quite clear on the subject.
Congress holding the power to declare war does not mean that the President must ask Congress for permission before waging war. In today’s world it would seem to be the reasonable thing to do, and I believe it would be the proper thing to do, but as far as the Constitution is concerned, congressional approval for a military action is not necessary.
A reference used to support the concept of “no war without a declaration” is The War Powers Act of 1973. The War Powers Act was simply a piece of legislation, and did not change the authorities of the President when it came to his war powers. The War Powers Act is unconstitutional. Only amendments can change the authorities granted to the President of the United States.
The two Barbary Wars, the first two international wars the United States found herself engaged in, were waged by Thomas Jefferson and James Madison. Jefferson’s engagement against the Muslim States of the Barbary Coast was fought from 1802 to 1805, after Jefferson refused to continue paying a tribute to the Barbary Pirates for safe passage through the Mediterranean Sea. Hostilities were reignited in 1815, during Madison’s presidency. Both wars were undeclared, waged by Jefferson and Madison without a declaration of war from the Congress, but Congress did appropriate funding for both campaigns.
Calling forth the Militia
The President of the United States is not supposed to be all powerful, or the final decision maker in the federal government. The American System of government is full of checks and balances. Even as the Commander in Chief, if he is abusing his power as the head of military operations, Congress can defund war efforts, or impeach the President.
In Article II the Constitution states that the President is the "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States." Some have argued that means he is only Commander in Chief when "he" is called into service to do so, which is accomplished by a declaration of war. That is an erroneous opinion.
As Commander in Chief, the President may engage the Army and Navy in war operations as necessary. This power of Commander in Chief does not extend to the militias at the President’s whim. The President is only the Commander in Chief of the Militia of the several States, when the militia is called into actual service of the United States.
The distinction was established so that the President could use military forces against foreign enemies if a quick and decisive decision was necessary, but not against the States, or the American people. The standing army is not for domestic use to suppress insurrections, or repel invasions. That is what the militias are for, and the militia can only be put into action by Congress, or State leadership. The President does not control the militias, nor does he determine when they go into action. His only relationship with the militias only emerges when they are called into actual service of the United States by the United States Congress. Then, and only then, the President serves as Commander in Chief over the militias.
Article I, Section 8 states that "Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel invasions."
States cannot call their militia into action "unless actually invaded, or in such imminent Danger as will not admit of delay." (Article I, Section 10)
Though the President is tasked with "faithfully executing the laws of the United States" as stated in Article II, Section 3, and he can do so with executive departments such as I.C.E., and the Border Patrol, the actual call for the militia (National Guard, State Militias, unorganized militia) to protect the border is the responsibility of Congress, and State leadership.
Executive Departments and Agencies
Article II, Section 2, Clause 1 indicates the President may “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective offices.” This part of this clause is a good indication that the Founding Fathers felt the President should consult others when making decisions, especially those familiar with the departments in question.
The existence of the different executive departments is constitutional, as long as they are established to handle constitutional duties of the federal government, and their powers are limited within constitutional allowances. Originally, there were only four executive departments (and five if you separate the War Department and Department of the Navy); the War Department, the State Department, the Department of the Treasury, and the Department of Justice. The Department of the Navy served as a separate department until 1947, but worked closely with the Department of War.
There are many departments in the executive branch that are unconstitutional, and should not have even been established. The Education Department, for example, is unconstitutional in its current form because there is no place in the Constitution that gives the federal government the authority to regulate, or be involved in, education. Therefore, as per the 10th Amendment, education is a State issue.
The Energy Department and the Environmental Protection Agency are also unconstitutional. The federal government has no authority to regulate those issues. However, if those departments did not regulate, but only kept studies and records of those issues, then the existence of those agencies may be acceptable.
The executive branch can have departments and agencies that study issues not authorized by the Constitution to fall under the federal government, but they cannot have any regulatory power because any federal laws regarding those issues are not constitutionally authorized to the United States Government. Regulations are directly connected to laws, and laws must be constitutional in the first place in order to be considered the supreme law of the land.
Despite these agencies not being legally allowed to regulate unconstitutional law, agencies like the EPA are doing just that. In fact, the EPA is regulating independently, literally legislating through regulations. In other words, the EPA, as well as other agencies, have been enacting their own regulations without the benefit of a law being on the books, revealing the danger of having unconstitutional departments and agencies.
This is not to say we should not have the various departments and agencies of the executive branch. Some of them are constitutional, and absolutely necessary.
Correction of federal unconstitutionality can be sought through concepts known as Republic Review, and nullification. By using a convention of delegates from the several States to determine the unconstitutionality of particular laws, actions, or departments of the federal government, the States can be encouraged to work together to nullify the unconstitutional regulations set forth by the various federal agencies. The States have the authority to take care of their own business, and if a federal agency tries to regulate an issue that falls under the State’s powers, the States have the right to ignore that regulation.
A common belief is that if we do not have these various federal agencies regulating things like food, energy, and actions against the environment, people will just act in ways that are unacceptable and dangerous. The opposition to the Constitution will tell you that we need the federal government to make sure that our food is safe, energy is used properly, and corporations are not polluting our fragile environment.
Local issues are supposed to be handled at the local level, and the people, through their States, are more than capable of properly regulating these issues as necessary, but in a manner that is consistent with the local opinion of the electorate.
The Founding Fathers did not trust a large, centralized, national government, hence, the reason the Framers only granted to the federal government authorities regarding external issues, and the power to act as a mediator between the States in the case of disagreement.
Reprieves and Pardons
The President is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This was one of the first functions President Gerald Ford took advantage of when he took office after President Richard Nixon resigned, pardoning Nixon so that no criminal cases could be brought against him. No impeachment procedure had ensued, so Ford was constitutionally allowed to grant the pardon. It has been suggested that is why Nixon resigned. If he had not resigned, and was impeached, the next President would not have had the authority to pardon him.
The President is granted the ability to make treaties and to nominate members to the executive branch, Supreme Court, and other offices not expressly provided for in the Constitution. Agreement and consent of two thirds of the Senate is necessary for any treaty, or nomination for that matter, to become effective. The advise and consent powers granted to the United States Senate was a way of disallowing the executive branch from mirroring the centralized British Model of unilateral control under the king. The authority also gave the States the allowance to approve or disapprove any action by the President by requiring that the Senate concur with two-thirds vote.
The purpose of giving advise and consent powers to the U.S. Senate refers us back to the original dynamics of the United States government. The Senators in the U.S. Senate were appointed by the State Legislatures before the appearance of the 17th Amendment in 1913. The Senate was the States’ representation in the federal government. The Senators were the voice of the States. Treaties, appointments, and other executive functions, though executed by the President, requires approval by the Senate. The States, as with the granting of powers to the federal government in the first place through the articles of the Constitution, had the power to approve or disapprove the President’s actions through the U.S. Senate in a manner much like parents grant permission to their children before a child can perform a particular action. After all, the Senate was the voice of the States, and it was the States that created the federal government in the first place.
This was an important check upon the executive branch by the States.
The executive branch requiring the consent of the U.S. Senate for some of its actions reminds us of the amendment process. As with treaties and appointments by the executive branch, amendments must be approved, or ratified, by the States. In the case of amendments, however, the vote is three-quarters of the States in order to ratify.
The federal government, be it through amendments, or executive actions, needs the permission of the States.
Remember, the States once held all powers. It was the States that provided the authorities to the federal government so that it may exist, and function. The States had original authority over all powers, and decided to grant a few authorities to the federal government so that it may operate in a necessary manner - specifically for the purpose of protecting, preserving, and promoting the union.
The States gave permission to the federal government to function in a manner prescribed by the Constitution.
An opponent to the originalist viewpoint of the Constitution once said to me, “You have it all wrong. The federal government tells the States what to do.”
If that was the case, then why would the President need to get the consent of the U.S. Senate to make treaties, and two-thirds of the Senators present have to concur? Why would the President’s nominations need to be interviewed and approved by the Senate? And with that in mind, remember that before the 17th Amendment in 1913, the Senate was the voice of the States.
The executive can do very little without the Senate’s approval.
War Powers seems like an exception on the surface, but even the authority to make war has its checks by Congress.
For the most part, it is up to the people and the States through Congress to ensure the President does not act in a manner unbecoming of the office.
This check is designed to protect us from tyranny.
Imagine how different the appointment hearings of Supreme Court justices have become, now that the Senate is no longer the representation of the States, anymore. The questions are probably very different than they otherwise would be. Now, the House and the Senate are really not a whole lot different. They are both voted in by the popular vote. Before 1913, the Senate was the voice of the States.
I wonder how the questions posed to the Supreme Court nominees would be different if the Senate still belonged to the States. Perhaps the questions would be more in line with protecting State sovereignty. Surely the concerns of the States would be behind much of the questioning.
The 17th Amendment changed the dynamics of our government. One of the reasons our federal government is constantly acting unconstitutionally is because it is now structured unconstitutionally. The people voting for the Senators, rather than the Senators being appointed by the State legislatures, is not in line with what was originally intended. With the voice of the States removed, the government cannot function as intended because the proper checks and balances are not in place. The 17th Amendment introduced ideology into the Senate, and removed one of the checks necessary to protect us against a federal government constantly seeking to become more expansive.
Recess Appointments
The final clause of Article II, Section 2 of the U.S. Constitution states: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
This clause refers to what is called a recess appointment. A recess appointment is the appointment of a senior federal official (department head, judge, etc.) by the President while the U.S. Senate is in recess. As the voice of the States in the federal government, the Senate must confirm all appointments of senior federal officers before they assume office. However, while the U.S. Senate is in recess, and during the early years of this nation that meant they could be a few days ride away, the President can make a recess appointment without Senate confirmation. However, the appointment only remains in effect until the next session. A recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again.
Remember, the House of Representatives and the Senate were originally made up very differently from each other. The Representatives go to Washington to serve their district, and to act in accordance with the will of the people in their district, making the House of Representatives literally the voice of the people in the federal government.
The Senate was made up of Senators appointed by the State legislatures. The Senators represented the States, and they made up the State coalition of the federal government. It was through the Senate that the States had representation in the federal government, and could ensure, along with the House of Representatives, to provide a series of checks against the executive branch.
Part of the way to control power is to divide it. Then, after you divide the power, divide it again. Then, make the powers of the separate branches different from each other, that way they do not collude together against the people, or other branches of government.
One of the fears of the Founders was that the branches would collude together in an effort to take away individual freedoms.
By requiring the Senate to confirm appointments by the Executive, it kept a leash on the Executive. Even in a recess appointment, when the President could appoint without confirmation by the Senate, confirmation would still eventually be needed or else the seat became vacant again. This kept the Executive from surrounding himself with a group of cronies the States did not approve of.
Terms:
Advise and Consent Powers - Treaties, appointments, and other executive functions, though executed by the President, requires the advise by, and the approval of, the Senate.
Collusion - Conspire together.
Foreign Entanglements - Unnecessary involvement with other nations.
Ideology - A set of political or economic ideas that forms the basis of economic or political theory and policy.
Impeachment - To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
Militia - An army composed of ordinary citizens rather than professional soldiers; a military force that is not part of a regular army and is subject to call for service in an emergency; the whole body of physically fit civilians eligible by law for military service.
National Government - Any political organization that is put in place to maintain control of a nation; a strong central government that does not recognize the individualism or local authorities of the smaller parts, such as states, of the nation.
Nullification - State power to ignore unconstitutional federal law.
Nullify - See Nullification.
Oligarchy - Government by a few powerful persons, over the many. A state governed by a few persons.
Recess Appointment - The appointment of a senior federal official (department head, judge, etc.) by the President while the U.S. Senate is in recess.
Republic Review - A convention of delegates representing the several States in order to audit the laws, actions, and composure of the United States federal government; a review of unconstitutional characteristics of the federal government based on the amendment ratification concept that if it takes three-quarters of the States to ratify an amendment, a quarter (plus one) of the States determining a law, action or department of the federal government to be unconstitutional allows the States to nullify the item.
United States Senate - The House of Congress in which each State enjoys equal suffrage of representation, with two Senators per State. The appointment of Senators was originally by their State legislatures, creating a natural check and balance between the House of Representatives, and the U.S. Senate. The appointment of Senators was changed to the popular vote of the people by the 17th Amendment in 1913.
War Power - Power exercised in the prosecution of war.
Questions for Discussion:
1. What is the difference between the power to Wage War, and the power to Declare War?
2. What is meant by “Commander in Chief?”
3. Why should, or shouldn’t, the United States engage in foreign entanglements?
4. Why is the War Powers Act of 1973 unconstitutional?
5. How can the States protect against a President abusing his war powers?
6. When are State Militias under State authority, and when are they under federal authority?
7. When is the President the Commander in Chief over the State Militias?
8. Regulatory Agencies are constitutional, but their regulations must conform to what authorities granted?
9. What is the difference between impeachment, and being removed from office?
10. When are recess appointments allowed?
11. What is a pro-forma session?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Copyright Douglas V. Gibbs 2015
Lesson 7: Faithfully Execute
He
The first word of Article II, Section 3 is “He.” The word refers to the President of the United States. I have actually had some people, who oppose the Constitution, tell me that the word “He” being used is evidence that the Constitution disallows women from being President. They then argue that if a woman was to become President, because of the word “He” being used in the Constitution, anything she did in office would be unconstitutional since the Constitution does not allow women to be President of the United States.
Not necessarily.
As with other writings, such as the Holy Bible, often the word “He” may be used as a general term to represent both sexes.
In the case of the Constitution, it is conceivable, considering the mindset of the day, that the Founders did not think a woman would someday become President of the United States. I assure you, people like John Adams and Aaron Burr were exceptions to that line of thinking.
Aaron Burr was Vice President under Thomas Jefferson, and he actually was one that proposed that there be a uniform rule across the nation that enabled women to vote.
If you look through the Constitution, there is no place in the Constitution that says women cannot vote, or run for office. The reason women were not able to vote, or run for office, was because the States were given the authority over the rules of elections, and during that time the States did not allow women to vote or hold office. Much of that changed in some States and territories long before the Suffrage Movement, but it took a Constitutional amendment to make the practice uniform among all States.
Therefore, the first word of Article II, Section 3, being “He,” is simply a general term. Whoever the first female President is in the future, she will be fully entitled, upon being elected, to assume the Office of the President of the United States.
State of the Union
“He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
The State of the Union address is supposed to be as it is worded in the Constitution, a speech about the state of the union addressed to Congress by the President. It is not supposed to be a campaign speech, it is not supposed to be a popularity speech, nor a chance to take a stab at political opposition. The speech is simply supposed to be an opportunity for the President to give the Congress information regarding the state of the union.
The speech is also not supposed to be designed as an address to the people, either. It was expected that the electorate would be interested in hearing the speech, and that the press would report on the speech, for it is in our interest to know what the state of the union is. But, the specific reason for the State of Union address is to give Congress information of the state of the union.
There is an additional reason for the State of Union address should the President deem it necessary. According to the Constitution, he may during the speech “recommend to their Consideration such measures as he shall judge necessary and expedient.” Of course, he can do this during the normal course of his presidency, as well. The word “recommend to their consideration” in this part of the clause gives us a clue to the limits on the powers of the President.
Article I, Section 1 reads: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
This means that the authority to make law, modify law, repeal law, and strike down law - “all” legislative powers - are granted to the Congress by the States.
Article II, Section 3 says the President can “recommend” to their “consideration” such measures. He cannot act without Congress, he cannot put measures into place “with or without Congress,” and at best he can “recommend” to Congress his own ideas regarding legislation that he would like to see Congress initiate. The President can only “recommend to their consideration,” because he has no legislative capacity. He cannot make Congress do anything, and he cannot act legislatively without Congress.
Executive Orders
The President has the authority to issue Executive Orders. An Executive Order is a proclamation. Executive Orders began back when George Washington was President. His Thanksgiving Proclamation was an Executive Order. Executive Orders serve two functions. They may be used to change the processes within the Executive Branch, because the rules of the internal workings of the Executive Branch are up to the President. Or, an Executive Order may be used to issue a proclamation that is not legally binding.
No place in the Constitution does the document give the President the allowance through Executive Order to modify, repeal or make law. Executive Orders have been used often in history to modify law, but that is an unconstitutional executive action. The President does not have that kind of authority.
Since all of the regulatory agencies in the United States Government are a part of the executive branch, they are also bound by the same limitations. Like the President, regulatory agencies cannot act legislatively. Whenever they make a regulation that is not to directly regulate (put in good order and execute) an existing constitutional law, but to regulate an unconstitutional law, or to create a new law, it is outside the authorities granted to the executive branch by the Constitution.
On March 26, 2012, Cap and Trade auto emission legislation failed to pass through Congress. The Environmental Protection Agency began to auction greenhouse gas allowances anyway, effectively taxing emissions and regulating in a manner consistent with Cap and Trade should it have passed as a piece of legislation.
On December 20, 2010, when an Internet regulation bill failed to pass through Congress, the Federal Communications Commission announced it would regulate the Internet anyway. The FCC's new regulations controlled the way service providers may manage their network transmissions.
The regulatory agencies are under the Executive Branch, and are not a part of the Legislative Branch. A Separation of Powers exists, limiting each branch to only the authorities granted to it, and any part of the executive branch, including the regulatory agencies, do not have any legislative authority.
Extraordinary Occasions
“He may, on extraordinary occasions, convene both Houses, or either of them.”
What is an extraordinary occasion? That would be an emergency, or during a time that matters are urgent. If the President believes a matter needs to be tended to, he can compel the Congress to be in session. In other words, it is constitutional when the President says something like, “I’m working, so Congress needs to be, too.”
An extraordinary occasion can be wartime, budget discussions, or anything else the President determines to be an extraordinary occasion.
This includes when there is a “disagreement between them (the Houses).” The President may choose when the Houses will meet, as he feels is proper.
The President was expected to be a man of sacred honor, and it was believed he would use this authority wisely, and not in excess based on the whims of his ideology fancy.
In Article I, Section 5 the Constitution instructs that the Houses may not adjourn without the permission of the other House. But what if they refuse to allow the other House to adjourn? This is where the President comes in. If, because of disagreement, the Houses won’t allow each other to adjourn, the President, if he feels it is necessary, “may adjourn them to such time as he shall think proper.”
The President can compel the Houses to convene, or adjourn, as he feels necessary, as well.
He can’t force them to make particular laws, per se, but he can make them be in session to get the work done, or take a break if he sees it as necessary.
As much as Congress has control over when they convene or adjourn, the President does have the authority if things are getting out of hand, or for whatever other reason he deems necessary, to override Congress’ decision of when to convene or adjourn.
An appropriate example would be during wartime. The President’s war powers enable him to put the military into action. If he feels there should be a declaration of war, would like to discuss his war plans with the Congress, or requires an apportionment of funding for the military effort, he can compel them to be in session. He cannot force Congress to declare war, or approve of his actions, but he can ensure they are in session so that the politics of war may be discussed.
If some of the members of Congress have a problem with the actions of the President so that they refuse to convene, he can then order Congress to convene so that he may discuss with them the issues at hand. If there are enough to qualify as a quorum, it is not necessary to compel the absent members to be in attendance. If Congress does not meet the requirement for a quorum, and the President believes the matter to be an extraordinary occasion, he can then compel the absent members to attend.
Receiving Ambassadors and Other Public Ministers
The President may invite important people to Washington, be they ambassadors, or other officials. Having the Chinese leader over for a dinner at the White House, or entertaining a group of diplomats, for example, is completely constitutional.
Regulatory Agencies
“He shall take Care that the Laws be faithfully executed.”
This clause establishes the enforcement arm of the Executive Branch, which eventually became the regulatory agencies.
The clause is definitive in its instruction to the President regarding the execution of the laws of the United States by using the word “shall.” The words “take Care” places an additional importance upon ensuring the laws of the United States are executed. The word “Care” in this clause is capitalized, placing emphasis on the word in a manner that we use today with italics. The laws must be executed with Care, and the Laws are expected to be “faithfully executed.” Faithfully, without exception, without preferences, and without ideological interference.
Laws, under the federal government, are only valid laws, if they are constitutional. If the laws are not made in line with the authorities granted to the federal government by the Constitution, they are not legal laws. The executive branch shall “execute” the laws - constitutional laws.
Some people say the Executive Branch is supposed to “enforce” the laws - and in a sense that is correct. But really, the Executive Branch is supposed to execute the laws - ensure they are carried out - Laws that were put into place constitutionally.
We are the final arbiters of the Constitution, but there are other steps along the way to ensure that unconstitutional laws don’t go into effect. The President represents one of those checks.
When President Obama determined DOMA was unconstitutional, and decided his agencies would not execute that law, he was acting constitutionally. The law is the law, however, and there is much discussion regarding if, considering that the President has decided the law is unconstitutional, he is compelled to ensure the law is executed. Also, if he refuses to execute constitutional law, calling it unconstitutional, it is our responsibility that he is removed, and replaced with somebody who will execute the laws appropriately.
The constitutional check in the hands of the President is not supposed to be utilized “after” a bill becomes a law, however. Unconstitutional laws are supposed to be caught before they get that far. The early President of the United States vetoed bills based on the constitutionality of the bill, and not necessarily because they disagreed with it ideologically.
In 1817, when President Madison deemed a public works bill unconstitutional, he simply refused to sign the bill into law, indicating in his written reason why he vetoed the bill that the proposed law was unconstitutional.
Congress can override a President’s decision not to execute a law on the books because he deems it unconstitutional, just like they can override a veto. The States may also enforce the law if the President refuses. Article I, Section 8 grants to Congress the authority to “provide for calling forth the Militia to execute the Laws of the Union.”
The reverse is also true. If the President tries to execute law, calling it constitutional, when it is not constitutional, the States can ignore those federal laws, or nullify them.
Officers of the United States
“… and shall commission all the Officers of the United States.”
The “United States,” as mentioned here in this final part of Article II, Section 3, does not mean The United States as a country. The United States is mentioned often in the Constitution, and whenever the “United States” is mentioned, it means one of two things. Either, it means “these States that are united,” or the “federal government.” Remember, to these early Americans, who considered themselves citizens of their States before they considered themselves “Americans,” the United States meant “these States that are united,” rather than a single, nationalistic, entity.
In this particular clause the “United States” means “federal government.”
As a result of that definition, you could also say that this part of the Constitution reads: “and shall commission all the officers of the federal government.”
The Senate must give consent, as indicated in Article II, Section 2 and Article I, Section 3, to the appointment of these officers, therefore, giving the U.S. Senate (and therefore “the States” prior to the 17th Amendment) the power of oversight over the President’s choices. This, in turn, means that any and all of the President’s czars are unconstitutional. Officers of the United States are any office holders in the government exercising significant authority pursuant to the laws of the United States, and czars are included in that definition.
Impeachment
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Impeachment is a term that means “To charge with misconduct.” Removal from office does not happen unless the official is “convicted.” In the case of the President and Vice President, the hearings are held by the U.S. Senate.
The reasons for impeachment may be for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Treason is defined in Article III, Section 3 as “levying War against them (these States that are United), or adhering to their Enemies, giving them Aid and Comfort.”
Bribery is defined as meaning the exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.
The real confusion comes when we talk about the final part: “or other high Crimes and Misdemeanors.”
When it comes to the phrase, "high crimes and misdemeanors" and the meaning of that phrase to the Founding Fathers, we must recognize the language used.
The word “high” in this context does not necessarily mean "more serious". It refers to those punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.
For an official who was placed in office by the people, a crime offends the sense of justice of the people. When a public official commits these crimes, they can be more serious than if the same crime is committed by a citizen, because of the trust put into the office the official holds.
One of those high crimes is Perjury, which is more than merely “lying under oath". Under the definitions used by the Founders, perjury also means "violation of one's oath (or affirmation)". Therefore, the President refusing to protect and defend the Constitution, could be considered perjury.
The President is bound by his oath of office in all matters until he leaves office to follow the oath of office. While he holds that office, he is always under oath, therefore his failing to uphold the oath, or lying at any time, constitutes perjury if it is not justified for national security.
An executive official is also ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. The President's subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by plausible deniability. The President is legally responsible for everything that everyone in the executive branch is doing.
Impeachment and removal proceedings may then encompass a full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied.
The meaning of the phrase "high crimes and misdemeanors," was common knowledge during the time of the founding of this nation. The phrase imports a concept in English Common Law of the word “misdemeanors” that essentially means bad behavior.
“Misdemeanors" in the language of the Founders, then, did not necessarily refer to a criminal act as many believe, but opened up the opportunity for impeachment of the President should he be guilty of gross incompetence, gross negligence, or outright distasteful actions which clearly show "malevolence toward this country and constitution, which is unabated."
The subject of impeachment was adopted from the English concept of this idea. In England impeachment was a device to remove from office someone who abused his office or misbehaved, but who was protected by the Crown.
James Madison said during the federal convention that impeachment ought to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”
At first, during the debates in the Constitutional Convention, the grounds for removal of the president were to be upon conviction “of mal-practice or neglect of duty” and subsequently this was changed to “Treason, or bribery.” George Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal. So, Mason proposed adding the term maladministration following ''bribery.''
Madison objected, believing the term to be too vague, or too general. Mason then suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate.
Term:
Adjourn - Suspend proceedings to a later time and/or place.
Bribery - The exchange of money, promises, or other things, with someone in office, in order to influence that person’s views or conduct.
Cap and Trade - Emissions trading; a regulatory approach to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants; central control limit of amount of pollutants that can be emitted (cap), and companies are permitted to sell the unused portion of their limits to other companies who are struggling to comply (trade).
Executive Branch - The branch of government responsible for executing, or carrying out, the laws. An executive in government can be a president, or a governor.
Executive Order - An order issued by the President of the United States that may be a proclamation, or an order to change the processes within the Executive Branch.
High Crimes - Punishable offenses that only apply to high persons, meaning “public officials,” or those who, because of their official status, are under special obligations that ordinary persons are not under.
Legislative Authority - See Legislative Powers.
Legislative Branch - Congress; the branch of the federal government that is vested with all legislative powers and consists of two Houses, the House of Representatives, and the United States Senate.
Legislative Powers - The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
Maladministration - Inefficient or dishonest administration; mismanagement.
Misdemeanors - In the Constitution the definition is bad behavior including, but not limited to, gross incompetence, gross negligence, or outright distasteful actions which clearly show “malevolence toward this country and constitution, which is unabated”; maladministration.
Nullification - State power to ignore unconstitutional federal law.
Perjury - Lying under oath, violation of one’s oath (or affirmation).
Plausible Deniability - Circumstances where denial of responsibility or knowledge of wrongdoing cannot be proved as true or untrue due to a lack of evidence proving the allegation; when high ranking officials deny responsibility for or knowledge of wrongdoing by lower ranking officials; any act that leaves little or no evidence of wrongdoing or abuse.
Quorum - Minimum number of members of an assembly necessary to conduct the business of that group.
Regulatory Agencies - Agencies within the Executive Branch tasked with executing the laws of the nation; the enforcement arm of the Executive Branch.
Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.
State of the Union address - A speech about the state of the union addressed to Congress by the President.
Treason - Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.
Veto - The power of a chief executive to reject a bill passed by the legislature in order to prevent or delay its enactment into law.
Questions for Discussion:
1. During what kind of circumstance can the President of the United States act legislatively? Why?
2. What kind of circumstances do you believe would be considered extraordinary by the Founding Fathers?
3. What is the proper role of the Regulatory Agencies?
4. Should failing to preserve and protect the United States Constitution be an impeachable offense? Why, or why not?
Resources:
Jon Roland, Meaning of "High Crimes and Misdemeanors"; Constitution
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Madison’s Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B. Kurland and Ralph Lerner, The Founder’s Constitution –
Volume Four – Article I, Section 8, Clause 5 to Article VII; Indianapolis: Liberty Fund (1987)
Vincent Gioia, What is a ‘Misdemeanor’ Under the Constitution and
Copyright Douglas V. Gibbs 2015
